Per SCOTUSBlog, the Court did not take any new cases from its 5/29 conference. The order list, however, does not include Kickapoo Traditional Tribe v. Texas. According to the docket sheet, the Court requested a response—after distributing the case for the 5/29 conference—from Texas in mid-May, due in June. So it appears that the Court will wait for another conference to make a cert-decision.

The Supreme Court is set to consider cert in Kickapoo Traditional Tribe of Texas v. Texas on May 29, 2008. Here are the basics:

In the wake of Seminole Tribe, the Secretary of the Interior adopted a set of regulations that allowed tribes to pursue Class III gaming even if an intransigent State refused to negotiate a pact under the IGRA. The Kickapoo Traditional Tribe sought Class III gaming, but Texas categorically declined to negotiate a pact knowing full well that, under Seminole, the Tribe could never call Texas to account in federal court. So the Tribe pursued Class III gaming through the Secretary’s regulations. Texas then challenged the validity of the regulations.

Turtle Talk and Legal Times have written interesting first impressions of oral argument. We’ll see if we can add anything here.

What we learned from oral argument, which all-in-all went better than expected for tribal interests:

1) The Court’s two newest members, Roberts and Alito, hold narrow opinions of tribal sovereignty. The Chief Justice and Alito took the lead in peppering the Long Family’s attorney with questions and hypotheticals mostly designed to point out general problems with tribal jurisdiction over nonmembers. To this end, Roberts made thinly veiled reference to tribal legal research obstacles and how a bank could know it dealt with an ‘Indian’ corporation. And Alito even attempted to rehabilitate the Bank’s argument after it withered under attack from Scalia, Souter, and Ginsburg. But even so, neither Justice managed to drive a convincing wedge between ‘Montana 1′ and the facts in this case.

The Supreme Court has granted certiorari to Carcieri v. Kempthorne. The Court’s review will be limited to Questions 1 and 2 of the petition. These are:

1. Whether the 1934 Act empowers the Secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934; and

2. Whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the Secretary from creating Indian country there.

Though SCOTUSblog correctly predicted this grant, it erroneously identified the issue as clarification of “the federal government’s power to take land for the benefit of Indian tribes that are not officially recognized.”